COLUMN -- Fine, Imus the bigot is gone. What about Imus the activist?

Friday, April 20, 2007


I have to admit mixed emotions over the firing of Don Imus. On one hand, Imus' banishment from medialand is vindication of the value of free speech. Speech may be free, but it has consequences. Offend people's sensibilities, and you pay the price. The tribe has spoken. I'm not going to miss the race-baiting shock jock.

But I am going to miss the activist who took on issues others in the media backed off from - specifically, Imus' championing of the hypothesis that mercury in childhood vaccines is connected to rising autism rates - now one case in 150 live births. Writing in the Columbia Journalism Review in 2005, David Schulman noted the mercury issue locked most of the media in an awkward position.

The hypothesis that the mercury-based preservative thimerosal, commonly used in childhood vaccines before 2000 and still found in flu and a few other vaccines, plausibly contributed to the alarming increase in the incidence of autism was, frankly, heresy. The scientific, medical and government health establishments denied any vaccine-autism link. Moreover, they viewed those supporting the theory as crackpots, conspiracy theorists or fanatical parents looking for someone to blame for their children's fate.

So who was the media to believe? "On Autism's Cause, It's Parents Vs. Research," declared the New York Times. Attempting to portray the mercury-vaccine connection as an ongoing scientific controversy, some reporters, discovered Schulman, were discouraged by colleagues and their superiors from pursuing the story. In general, the media were reluctant to buck the establishment. They mostly still are.

Not Imus. In 2005, he was among the first to interview David Kirby, a Brooklyn-based writer whose book "Evidence of Harm" makes a strong case for the plausibility of a connection between thimerosal and autism. Imus was on the line two years before autism became safe enough for a recent one-touch by Oprah.

In a column on the Huffington Post, Kirby gives Imus and his wife, Deirdre, much of the credit for the passing of the Combating Autism Act, which allocates funds for autism research. But, notes Kirby, an April 17 Senate hearing on specific funding was scheduled without input from organizations that support the mercury hypothesis, and the groups will not be allowed to testify.

"Imus would have gone ballistic at that injustice," writes Kirby. "But now he is gone, and he can't."

There is a teachable moment here.

Yes, Imus made a personal, racist attack on a group of young African-American women who didn't warrant the insult. He's paying the price. But are we as a country better off? Are African-Americans better off? Are we willing to talk about that?

Imus intends a crack about a college basketball team and Jesse Jackson and Al Sharpton come riding out of the hills hell-bent on shooting the wounded in hopes of maintaining a semblance of relevance. Their shtick is premised on America being a racist nation. Imus confirms that, they imply. Banishing Imus from the airwaves doesn't change that, but it does reinforce the notion that people of color are still victims needing organized outrage and preferential care.

Last legislative session, I sat at the Capitol and listened to a Minnesota-nice white woman speak against school vouchers because "inner-city" parents weren't equipped to make good choices about where and how their children should be educated.
Forgive me. While not excusing Imus, I find the woman's condescending liberalism far more sinister and indicative of racism than an off-the-cuff comment of a shock jock. Confronting the attitude that people of color can't possible succeed without beneficent white help would do more for African-Americans than booting Imus off the island.

Imus the bigot is gone, and the world is safe for female African-American basketball players, if not quite so welcoming for families of color who would like a choice of where they send their kids to school. But who's going to replace Imus the activist? Who's going to speak for the family facing odds of 1 in 150 of having an autistic child? Imus may have been grotesque and incomprehensible, but perhaps we really did need him to break down a few walls. Just a thought.

COLUMN -- Head-shaking won't do it; engaging in market-principled government might

Wednesday, April 4, 2007

It was a week where the Minnesota DFL taxed even our patience with proposals for tax increases on just about everything else. The time seems right for a good old-fashioned rant on the arrogance, self-serving politics and downright socialist propensity of the DFL (motto: "Willing to force someone else to pay for a better Minnesota").

Although such a rant would be indeed cathartic, it has little value. Two cardinal rules of life: 1) never bluff a dumb poker player and 2) never try to embarrass someone who has no shame.

A shameless DFL has gone wild exposing the nanny-state metaphors. But the blame for that irresponsible behavior, I contend, rests with the GOP. The GOP ran a bluff and lost its stake in the Legislature by playing a DFL-lite hand. Now it's a little late for the governor and the party to go all-in on conservative principles. Nobody's buying that ruse.

The DFL has exposed the GOP "tell" - the GOP shakes its head "no" whenever the DFL ups the ante. The GOP is chasing control of state government like a dog running after a bus; it doesn't know what to do with it when it catches it. Lacking faith that conservative principles can win elections, Republicans mimic the DFL tax and spend dance. Unfortunately, they don't know the steps very well and their metaphors are smaller.

In case the GOP (and my good friend Jason Lewis) missed it, David Brooks' New York Times column published in the Pioneer Press ("The folly of looking backward to Goldwater and Reagan," March 30) implies that while government is not THE solution to problems, by the very nature of its extent, government today must be a PART of the solution.

Brooks' premise is simple: Conservatism rose to prominence in the 1970s when people were right to think their future prospects might be dimmed by a stultifying state. The active paradigm was "liberty vs. power" - the idea that big government meant less liberty.

That was then. Today non-ideological Joe and Jane, facing large amorphous threats like having their jobs outsourced, rising energy prices, loss of health insurance and deteriorating schools for their kids, don't see their own government as the No. 1 threat to their personal freedom.

Brooks writes: "People with secure health care can switch jobs more easily. People who feel free from terror can live their lives more loosely. People who come from stable, secure homes and pass through engaged schools are free to choose from a wider range of opportunities."

The "liberty vs. power" paradigm has been replaced with a "security leads to freedom" model. That switch doesn't end debate between right and left, says Brooks, it just engages it on a different ground.

Unfortunately, the Minnesota GOP doesn't get that, or, if it does, it hasn't figured out how to engage the DFL in the new paradigm. That's why the DFL can run wild with economy-killing tax proposals, stomp on charter schools and vouchers to "save" the status quo education system, and create the illusion that government-provided universal health care coverage is the same as being able to see a doctor when you need to.

But Joe and Jane aren't listening to the conservatives on these issues because their head-shaking "no" strategy offers neither security nor freedom. Joe and Jane aren't responding to GOP moderates because they aren't offering as much as the DFL.
In today's world, the GOP can't portray government as the enemy when its goal is controlling the government. The challenge for the GOP is creating conservative policy that meshes with the "security leads to freedom" paradigm. The GOP needs a Ronald Reagan with a message for this time and this place that resonates with today's voters - someone who understands that even in the guise of a government program, market mechanisms work.

Government is no longer the only problem, or even our biggest problem. Neither is government the only solution or the best solution. But government is definitely part of most approaches to the challenges facing Minnesota.

The GOP must not slight individual and economic liberty (as the DFL and GOP moderates do), but it must stop its whining about DFL policy and lamenting the ignorance of voters (as conservatives do). The GOP needs to put aside its fear of government and consider how to replace the DFL tax-and-spend model with a market-mechanism approach to limited government programs. "Trust but verify" also makes for good domestic policy.

COLUMN -- charter schools should be seen as complements, not threats

Thursday, March 29, 2007


A scribe writing for the venture-capital asset across the river took recent delight in goring the "sacred cow" of charter schools. The Minnesota Senate's education budget bill, which caps public charter schools at 150 (the current level plus those scheduled to open in the fall), logically makes sense, he wrote. The "experiment" is out of control. With Manichean paranoia he warns:

"The charter-school movement has been hijacked by people driven by ideological beliefs. For too many, charter schools are accomplishing the cherished goal of dismantling the state system of public education."

Casting the charter school cap as a battle between good and evil reveals a visceral, and, I fear, all-too-common attitude. Some policymakers think "public education" is exclusively the state-district run system. Charter schools, private schools, religious schools and home schools are feared as threats rather than befriended as valid and valuable complements to that system.

For some, distrust of charter schools reflects a distrust of private choice, and the notion of marketplace decisions motivating the fast growth of charter schools is uncomfortable. Nonetheless, reasonable people concerned about providing the best education for Minnesota children raise questions about charters that, if given some thought, tend to support encouraging, not discouraging, charter schools.

*Are charter schools handling their finances in a responsible manner?

Some charters have run into financial problems. According to Commissioner of Education Alice Seagren, the Education Department has taken steps to reduce recurrence of the problems. As part of its approval process for charter schools, the department now requires charter school board members and sponsors to attend seminars on school finance. The state's effort is a good step, but the best check on charter schools is the vested interest of parents and teachers who sit on charter school boards.

Charter schools are funded much differently than traditional schools. District funding is determined using a complex formula that yields a deceptively precise "per pupil unit" funding amount. Money flows from the state through the local district to individual schools, which ultimately have little discretionary authority over their budgets. Charter school funding flows from the state to specific schools. Charter school administrators are accountable for how funds are spent. Charter boards have instant and direct access to financial information. Charter budgets and expenses are discrete, transparent and independent of one another. Financial problems, if they exist, are limited to individual schools; they do not indicate a systemic problem.

* Are charter schools producing increased student performance?

Comparisons of student performance among district schools are always couched in caveats about students' social baggage, positive intangibles not measured by test scores, appropriateness of standardized tests and the like. In that context, how do those questioning the performance of charter school students propose to measure it when traditional schools haven't figured that out?

Like all public school students, charter school students take standardized state tests. Results show some charters perform better than others, some better than district schools, some not as well. The more interesting comparison is how might students have fared had they remained in their assigned district schools. Charter enrollment is voluntary, and families seek out charters looking for better performance. Ultimately, a school that meets and exceeds parental expectations is a good measure of how the school is doing at the job of educating children.

That brings us to perhaps the most important questions that might seem to justify a cap on charter schools:

* Are charter schools hurting district schools? Are they doing more harm than good to the overall education system?

Increasing enrollment in charters compared to decreasing enrollment in some district schools, most notably Minneapolis, indicates charters might lure students (and consequently funding) away from district schools. Clearly, that's not good for the affected district schools. But should we be looking at what is best for traditional schools or what is best for kids?

Charter school enrollment is voluntary and increasing. That some charters have waiting lists upward of 100 indicates they are doing something right. If students are migrating from schools that aren't meeting their needs to schools that offer alternatives, why does the Senate want to cap the movement instead of looking at why it is occurring? Is the problem that charter schools are too successful or, perhaps, that the narrowly defined system is not successful enough?

Charter schools create opportunities that a single-system monopoly simply can't offer. Innovation is risky and will not always succeed. Some charters are bound to fail - which is a buyer-beware disclaimer for families considering charter schools. But overall, charter alternatives enhance education in Minnesota. Rather than questioning the motives of those supporting, founding and sending their children to charter schools, Minnesota is better served by acknowledging the value and encouraging the charter school movement.

Pioneer Press Comment Link

COLUMN -- Treating too many divorced dads like deadbeat dads

Wednesday March 14, 2007


Molly Olson, volunteer executive director of the Center for Parental Responsibility, has hammered away for seven years at reforming family law policy and divorce practice that discourages both parents from being fully involved in the lives of their children. Most often, she is on the side of noncustodial dads who want, both financially and emotionally, to be a part of their children's lives but instead find themselves battling a bureaucracy more oriented to chasing down "deadbeat dads" than encouraging equal parental responsibility.

No one is opposed to wringing child support payments out of deadbeat dads, Olson says. But a family law process that treats all noncustodial parents as if they were deadbeats is counter to the best interests of children. It makes children the "prize" in custody battles and creates a winner and loser where cooperation ought to be the objective. Sometimes government's best role is staying out of the way … but not always.

Ramsey County Attorney Susan Gaertner oversees the front line of federal, state and Ramsey County child support collection and enforcement. She has spent 14 years associated with child support collection and enforcement. She is emphatic and unapologetic in her respect for county employees who collect court-ordered child support. She has seen the positive difference that effort has made for many families. Child support collection is fundamental to getting families off welfare and keeping them off welfare. It is, Gaertner says, a major factor in reducing crime. Sometimes government's best role is being aggressive … but not always.

Olson and Gaertner are both passionate. They both want parents actively involved with their children. But they bicker like a divorced couple over what is best for "the children." The apple of their discord is Title IV-D of the Social Security Act.

The original 1935 Title IV legislation provided grants to states to serve "needy" families with children and provide "child-welfare services." By 1974, Title IV was busting the budget. Through Title IV-D, Congress sought to reduce welfare expenditures by enforcing child support collection from absent parents, usually dads, who abandoned their families. Through cost avoidance and cost recovery, it was the government that was to benefit. Any benefit to children and families was incidental, not considered an entitlement.

In 1996 the feds said if states wanted certain welfare funding, they had to have a federally acceptable child-support enforcement program.

The new strain of Title IV-D included some tough enforcement powers and incentives for the states. A change in language altered the focus of Title IV-D from "absent" parents who abandoned their families to "noncustodial" parents, regardless of whether they were actually "absent" from their children's lives.

In essence, Title IV-D collection and enforcement services were suddenly available to any custodial parent who wanted them. Title IV-D agencies grabbed the opportunity to attract more federal money. They expanded collection services beyond "needy" families to middle-class and even well-to-do families — even where there hadn't been problems with collecting child support. If a little collection does good, they reasoned, then more collection must do more good.

That brings us back to the crux of the discord.

Olson looks at Title IV-D and sees "program creep" — expansion well beyond congressional intent and legitimate federal authority. Gaertner sees Ramsey County collecting court-ordered child support payments, helping needy families, and asks, "Where's the harm?"

If there is harm, Gaertner says, it lies in the "devastating" federal cuts to the Title IV-D program. She supports a proposed $8 million state appropriation to make up the federal shortfall. Olson opposes the appropriation, claiming Title IV-D has morphed into a middle-class child-support program that lets government intrude where it has no financial interest and costs taxpayers millions in unnecessary expense.

The harm, Olson says, comes from applying harsh measures aimed at fathers who have abandoned their children to fathers who, despite divorce or separation, have never been absent from their children's lives. The characteristics of the Title IV-D program that help Gaertner collect child support from absent fathers disrupt the relationship between children and loving and caring fathers who were never intended to be part of the program.

Enter constitutional lawyer Marshall Tanick of the law firm of Mansfield, Tanick & Cohen. In support of Olson's position, he's preparing for possible constitutional and statutory challenges to the Title IV-D program that would refocus Title IV-D on welfare recipients and those in danger of slipping onto public assistance. It might also provide needed precedent for setting elusive limits on government's "spending power" — the practice of making federal funds contingent upon state actions.

Title IV-D as originally intended is an effective tool for getting needy families off and keeping them off welfare; but expanding Title IV-D beyond its original role of cost recovery and cost avoidance is to risk Lord Acton's corruption by power. Olson is right that Title IV-D needs reform. Seeing not the dangers of its excess but only its benefits, Gaertner's interest lies in wielding Title IV-D power, not curtailing it. That is a challenge for others. Tanick appears ready to take it on. I wish him well.

COLUMN -- Get rational about when the state should pre-empt local decisions

Thursday March 1, 2007

Pre-emption — a legislative clause prohibiting communities from passing ordinances that are stricter than state law — has been ricocheting through committee hearings on the statewide smoking ban like a bounding football. Rule of law, as opposed to whim of men, demands a consistent application of pre-emption. Pre-emption is not just a loophole to be opened or closed.

As readers of this column know, I oppose a statewide smoking ban extended to bars and restaurants. I don't believe the science on secondhand smoke warrants it, and a reasonable person can protect himself from exposure in privately owned bars and restaurants by not patronizing them or choosing not to be employed in them. The danger of exposure to secondhand smoke doesn't rise to a level that requires government to trump fundamental property rights.

The concept of pre-emption figures prominently in the statewide smoking ban debate. Anything less than a comprehensive statewide ban with no exceptions raises this question: "Should local jurisdictions be pre-empted by state law from enforcing smoking bans stricter than the state might impose?"

Ban supporters will say "no," ban opponents, "yes" — both positions reflecting the whim of men.

However, there is a broader question, one that has to do with the rule of law: "When is it legitimate, necessary and proper for the state to pre-empt local decisions?" — not just smoking-ban ordinances, but any decision that is the expression of local will.

Questioning the limits of government is important regardless of one's position on the smoking ban. It is important to identify the principles necessary to find limits all can agree to.

Under Minnesota law, local jurisdictions are creatures of the state. So the state grants or denies municipalities the authority to impose ordinances stricter than state law. So pre-emption may be legitimate, but that doesn't always make it necessary and proper.

How might we judge when pre-emption is necessary and proper, as well as legal? By reverting to the principle of government's role in protecting fundamental rights. If the state determines a fundamental right is at stake, municipalities shouldn't have the authority to violate it. If the state punts on making that decision, it becomes the responsibility of municipalities to decide the question of fundamental rights.

Here's how that concept plays out in the statewide smoking ban debate.

Besides a comprehensive ban with no exceptions, the two most likely scenarios for a statewide smoking ban are these: 1) no new law — the status quo — a statewide ban that excludes bars and restaurants; or 2) a ban that extends to bars and restaurants but allows for exceptions if specified requirements are met — installation of ventilation equipment, for example.

Pre-emption — prohibiting a stricter local ordinance — can dramatically change the intent and purpose of the Legislature in each of these scenarios.

Take the first possibility — the status quo: A new statewide smoking ban is not passed. In that case, absent a clear legislative stand on the private property issue, municipalities should have the authority (and, it can be argued, the responsibility) to impose stricter smoking rules than the state to protect citizen health. Each city must weigh the science and the economic and social consequences and make its own call.

The second possibility is a statewide ban that includes bars and restaurants but allows exemptions for establishments that install ventilation equipment and maintain an air quality standard — an approach that seeks to balance the perceived health risk of secondhand smoke with private property rights and individual choice. In that case, should the state allow local municipalities to pass stricter ordinances? Many local jurisdictions already have comprehensive smoking bans in place, including St. Paul.

I would argue "no" in that instance. The Legislature is saying that, having weighed the evidence, the danger of secondhand smoke does not rise to the level where it is necessary to trump personal property rights and individual choice. The state would have taken a stand to protect the fundamental right of a property owner to determine what legal activities he will allow on his property. It would not then be proper to allow municipalities to curtail that fundamental right.

Although the focus of the smoking ban debate is on the "yeas" and "nays," it raises broader issues that should not be ignored. "When does public health trump fundamental rights?" and "For what reasons do we prevent local people from making local decisions?" The debate challenges legislators' willingness to be rational about the reach of government power and to be consistent with the principle of using the least restrictive means to achieve state interests.

How the Legislature approaches the broader issues raised by the smoking ban debate says a lot about the society we are becoming. Are we listening?

COLUMN -- Stubborn facts — and a stubborn defense of principle to go with them

Thursday, February 8, 2007


John Adams' defense of British soldiers accused in the 1770 Boston Massacre (and of the greater principle of due process) gave us his oft-quoted observation, "Facts are stubborn things, and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."

Facts are still stubborn things.

Last week, the Health and Human Services Committee of the Minnesota House held a hearing on the Freedom to Breathe Act — otherwise known as the statewide smoking ban. In defense of a greater principle, Reps. Laura Brod, R-New Prague, and Tom Emmer, R-Delano, took on the cause of bar and restaurant owners who dare exercise their private property rights and permit smoking in their establishments. It was a good, old-fashioned political butt whipping. Brod and Emmer shredded the arguments of bill sponsors Thomas Huntley, DFL-Duluth, and Dan Severson, R-Sauk Rapids.

Unfortunately, the attitude that the end justifies the means is also still stubborn.

Ruled by its inclinations, the dictums of its passions and an altered state of facts and evidence, a 12-6 majority in that committee advanced the statewide smoking ban to the Commerce and Labor Committee.

Even if one favors a comprehensive statewide smoking ban, one ought be embarrassed by the bill passed out of the Health and Human Services Committee. Not only did ban supporters do a poor job of justifying the necessity of a statewide smoking ban, the Freedom to Breathe Act is a jumble of inconsistencies and potential unintended consequences.

And therein lies the problem: When legislation is predicated on inclinations and passions and justified by an altered state of facts and evidence, not only is the result unnecessary legislation, it's bad legislation.

The case can be made that all legislation is invariably subject to interpretation. If there aren't loopholes, some smart lawyer will create them and some "activist" judge will validate them. That may be true as far as it goes, but the assumption ought to be that legislators have done their best to create a tight piece of legislation. When legislation is fact-based and addresses compelling state issues, that's generally the case. When it follows the dictums of passion, it ain't necessarily so.

Brod, Emmer and others raised numerous implications and potential unintended consequences of the Freedom to Breathe legislation. Does the bill inadvertently affect private homes used for business? Does public law that provides Minnesota the authority to enforce "criminal and prohibitory law" on American Indian reservations affect the legislation's attempt to exempt tribal casinos from the ban? When does a patron violation become a violation for which the establishment owner is criminally liable?

Normally, such issues are resolved in the committee process. Last session, eminent domain reform that limited when government could take private property for a public use passed through eight committees before earning a floor vote. This year, when Brod raised the question of what committees would be hearing the Freedom to Breathe Act, Huntley said he had no idea what the path might be, but he "would just as soon send it to the floor as soon as we can."

If the objective were crafting a bill that best served Minnesotans, then, as Brod suggested, it would pass through committees on local government affairs and public safety as well as commerce. But if the purpose of the bill were simply to ban smoking, then, as is Huntley's inclination, the quicker it got to the floor, the better — especially after Brod and Emmer shredded every health and economic justification for a smoking ban, save two.

By the time the committee was ready to vote, Rep. Ken Tschumper, DFL-La Crescent, was justifying the trumping of private property rights with the only undisputed argument ban supporters could muster — secondhand smoke smells bad.

Rep. Tina Liebling, DFL-Rochester, finally clarified the real motivation behind the Freedom to Breathe Act — she declared a statewide smoking ban necessary to "set behavior norms" for all Minnesotans.

"I hear a train a' comin' — it's roaring round the bend," the American Lung Association's Pat McKone sorta sang, giddily concluding her pro-ban testimony with a fitting metaphor for a bill being railroaded through the committee process despite inconsistencies, unintended consequences and confused justifications.

Brod, Emmer and stubborn facts will get another shot when the legislation goes to the House floor for debate. The outcome may not be any better, but when gutsy legislators persevere against intrusive government, one can always hope.

COLUMN -- Can a monolithic school system serve the common good?

Wednesday, January 31, 2007


An indication of the problem we face making any kind of real education reform is in the dueling education reports that recently came across my desk.

From the Center on Education Policy comes a defense of the traditional public school system, "Why We Still Need Public Schools." It declares a primary purpose of public education is "accomplishing certain collective missions promoting the common good." It lists six:

• Providing universal access to free education,
• Guaranteeing equal opportunity for all children,
• Unifying a diverse population,
• Preparing people for citizenship in a democratic society,
• Preparing people to become economically self-sufficient,
• Improving social conditions.

The report admits that public schools are not meeting expectations in these areas and reforms are in order. However, the report notes, "Most current efforts to reform public education have focused on increasing students' academic achievement. … But the reasons given for why it's important to improve achievement often stress individual or private economic benefits, rather than public benefits."

The report makes clear the common good is a primary benefit and justification for a publicly funded education system.

The second report, this one from the Cato Institute entitled "Why We Fight — How Public Schools Cause Social Conflict," concludes public schools inherently work against their own collective objectives.

Public school conflicts over intelligent design, freedom of expression, book banning, multiculturalism, mandated integration, sex education, homosexuality, and religion in general are not aberrations. Conflict in a centralized school system is inevitable. Cultural, ethnic and religious groups have no choice but to fight for their values in a system where "unity" is controlled by the politically powerful.

Indeed, community benefit must be part of any discussion of public education — we do spend almost 40 percent of the state budget on education. But the Cato report presents convincing examples in support of an intuitive notion — conflict over who controls policy that governs public schools is inevitable. It creates divisiveness rather than unity. Such conflict diverts time and resources from the mission of educating individual students.

These two reports, read in tandem, raise three linked questions for educators, the governor and legislators.

• How do we reconcile, if we can, the dichotomy of common good versus individual achievement in the making of statewide education policy?
• Is the purpose of public education to serve the individual or to serve society, and if the answer is "both," how do we decide priorities when inevitable conflict arises?
• Can a common good be achieved within a single monolithic education system?

Those are questions neither the governor nor the legislators have wrestled with in public, opting instead for "reform" proposals that are simply new best guesses for achieving politically compromised objectives. We're changing education policy, but not changing the way we make education policy.

Think of our current "obsolete" education system (the governor's word), as a person with a blindfold bumping into a wall. The reform proposals on the table turn the person to the right or the left, give him some walking room, but they don't remove the blindfold. Sooner or later, our guy is going to hit another wall. Therein lies the inherent problem with a monopolistic education system. It is blind to changes in the environment until it bangs headfirst into them.

Reform is not doing different things (turning right or left); it is doing things differently (taking off the blindfold).
If the governor and the Legislature are serious about education reform they will decentralize decision-making — fewer top-down mandates to local districts and schools, more freedom for districts (and individual schools) to respond to local needs (the charter school model).

Beyond reforming the public school system, the governor and the Legislature ought to take a larger view of "public education." Public education for the common good consists of traditional public schools and nongovernmental schools. Policy should foster an environment where private and home schools are healthy complements to the government system.

The more eyes focused on the path ahead, the more likely we can change direction before hitting the wall of obsolescence.

Decentralizing and expanding the concept of public education is a radical approach to reform, but it is also an honest attempt to reconcile two very different perspectives in two otherwise irreconcilable reports. The alternative is the same old debate that inherently produces conflict over who gets final control of education policy. That is not good for children. That is not good for the republic. It's time to be bold.

COLUMN -- Liberty is at risk: Blame the right — and the left

Wednesday, January 17, 2007


I make no bones about writing from a libertarian-conservative point of view. My conservative side bristles and finds an awful lot to disagree with in Stillwater author Anthony Signorelli's book, 'Call to Liberty: Bridging the Divide Between Liberals and Conservatives.' But the libertarian in me finds much to agree with. In a bridging-the-divide spirit, agreement is the place to begin discussing what is an interesting if ultimately unsatisfactory read for the left, right and moderate middle.

A citizen-pundit, Signorelli is a consultant and an entrepreneur who has marched to his own drummer and achieved success. He does not shun the notion of an American dream or that America was founded on enduring principles. Unlike so many authors on the left, Signorelli starts from principles political conservatives heartily endorse (or should).

His argument is straightforward: Private property, the rule of law and individual sovereignty are principles that hold us together as Americans. Considered in historical context, they are "liberal" principles, and the United States is a "liberal democracy."

Principles differ from values; principles are enduring, while values are individualized, changing and the basis of differences. Within the context of "liberalism," progressives, moderates and ("true") conservatives place emphasis on different values, which might lead to different policy choices, but their legitimate efforts are guided by the shared American narrative, the principles that bind us together.

The parenthetical "true" is there because Signorelli extends his argument to define a radical right wing composed of the Christian right, neoconservatives and the corrupt right-wing corporate elites and personified by a Bush administration that has co-opted the label "conservative" and demonized the label "liberal." The right wing covertly espouses a philosophy and policies that are anathema to American tradition.

"The alternatives to liberal democracy are not legitimate to an America committed to emancipation, freedom and liberty," Signorelli writes. "True conservatism cannot be such an alternative because it is itself a creation of liberal democracy. Radical right-wing extremism ultimately becomes fascism or totalitarianism." There is a corresponding radical left (communism and anarchy), but it is the radical right wing that is in power and that we ought to worry about.

America is not yet a fascist country, Signorelli says, but he cites the work of Friedrich Hayek, "a darling of the modern American right-wing movement," to illustrate that the conditions for fascism are present in America today, and their source is the right wing.

Signorelli's book has three main purposes:

• Identify America's liberal heritage and principles.

• Clarify challenges to those principles and identify their source.

• Make suggestions for reclaiming American liberal democracy.

To a large degree, he succeeds, but the success is tempered by the very partisanship that Signorelli seeks to avoid.

The promise of his premise goes unfulfilled. In what might have been an insightful book — a progressive's understanding of how progressive values mesh with a liberalism based on the principles of private property, the rule of law, and individual sovereignty — we get another dose of Bush bashing. Granted, Signorelli bashes more responsibly than most, and some of his observations will sting an honest conservative, but it's not the insight one would hope for, nor insight that Signorelli is in the best position to provide.

A major difference between the left and the right today is that the right of the political spectrum is influenced by limited-government libertarians, who reflect and are actually more aligned with Signorelli's "American Liberalism" than are post-New Deal "liberals."

Libertarians stood against invading Iraq, in opposition to neoconservative principle, not on the basis of whether there were weapons of mass destruction. They argue against wiretaps and infringement of civil rights. They also oppose massive federal interventions in education, health care and crime-fighting legislation — signature legislation in the Clinton and both Bush administrations.

The point is, the right is open to and does engage in internal debate, and the issues raised by Signorelli are not new to the right. There is no equivalent to the libertarian influence on the left. No group on the left questions the legitimacy of the progressive notion of social reform, which John Stuart Mill, part of the liberal heritage Signorelli cites, described as "liberticide."

"Call to Liberty" will no doubt throw many conservatives into denial about the extent to which liberty has been eroded in their name. Unfortunately, many on the political left will seize on the same points to camouflage their own tendencies to elevate progressive values above the principles of private property, rule of law and individual sovereignty.

Neither side deserves a pass on confronting its own reflection in the corruption of power — not the party that is struggling to hold power, nor the party that sees itself with an electoral mandate. "Liberty" means more than the freedom to choose one's master.

Update: Here is the link to a Google Video of Tony Signorelli's appearance at the Stillwater Critical Thinking Club.

COLUMN -- Absent exaggeration, scientific case for smoking ban is weak

Following my Pioneer Press column is a column that appeared Monday in the St. Paul Legal Ledger. Taken together, the columns make the case that regardless of the outcome on the statewide smoking ban, the state ought to define limits to it's authority to make individual health issues "public health issues" as it defined limits to its authority of eminent domain.



Wednesday, January 10, 2007


In the editorial 'Ban smoking in the workplace statewide,' the Pioneer Press makes an intellectually honest case for extending the statewide smoking ban to include bars and restaurants. It steers clear of misleading exaggerations and attempts an objective view of the science of secondhand smoke. It acknowledges the larger issues of the debate — property rights, economic harm and the limits of government power.

However, eschewing exaggeration leaves the Pioneer Press without convincing scientific justification for a statewide smoking ban. Honestly presenting scientific fact opens the door to questions about if and how government should legitimately be involved. The Pioneer Press sidesteps the most fundamental question: How are the limits of government's public health authority defined?

Anticipating an obesity "crisis," a trans-fat plague and mandatory public health initiatives driven by homeland security, it's critical to define the limits of government's public health activities, regardless of the smoking ban outcome. That's where legislative attention ought be focused.

The Pioneer Press makes thiscase: A statewide smoking ban in bars and restaurants is justified because smoking in public is not a private act. It exposes a roomful of nonsmokers to polluted air. That makes it fair game for public health scrutiny.

According to experts, secondhand smoke is a "powerful trigger" that can cause blood clots in people with diseased arteries. Some diseases, including most cancers, require longer periods of exposure. Nonsmoking employees in smoke-filled workplaces and nonsmoking spouses of smokers are at risk.

The Pioneer Press specifically states it does not want to make smoking in one's home a crime, despite noting that there is stronger evidence that secondhand smoke has negative health impacts on pregnant women, young children and infants, and there is statistically significant evidence secondhand smoke can cause sudden infant death syndrome.

The editorial concedes there are limits to the government's responsibility to protect public health and safety, but it does not define them. The Pioneer Press's ultimate rationale for a statewide smoking ban is its "fear that half-measures, exemptions, city by city rules or voluntary programs" won't change anything. Government, it says, has a responsibility to act.

The debate over a statewide smoking ban highlights a dangerous inconsistency: There are limits on government's ability to physically take private property, but virtually none on its authority to regulate, in the name of public health, what is allowed on private property.

In the 2006 session, the Minnesota Legislature defined limits on the government's authority to use eminent domain to take private property for public use; in a like manner, the smoking ban debate is the opportunity to define when government has legitimate responsibility to limit individual liberty in the name of public health.

The Pioneer Press maintains that possible acute reactions to secondhand smoke and a statistical correlation to increased risk of some cancers is sufficient to necessitate a statewide smoking ban. The acute danger, however, is relevant only to people with pre-existing health conditions. The risk for some cancers correlates (statistically; it is not proven as a cause) only after decades of consistent exposure, and then on the order of two to three additional cases per 100,000 nonsmoker instances. If those levels of risk warrant government action, then some other conclusions follow.

The Pioneer Press says it does not want to make smoking in a private home a crime. Why not? The home is not sacrosanct; government makes it illegal to grow and smoke marijuana in private homes — even if it's recommended for health reasons by a physician. One can drink adult beverages at home, but not if one's intoxication endangers a child. According to the science, any amount of smoke in a house endangers children, spouses and infants. So why shouldn't smoking at home be a crime?

"If public health is the issue, how can we worry so much about smoke blown on adults in a restaurant or bar and so little about infants and children living in smoke-filled homes?" asks the Pioneer Press editorial. It is, however, silent on the obvious answer — public health is not the main motivation behind the statewide smoking ban however much the Pioneer Press would like it to be. It is about borrowing the undefined, unlimited public health authority to ban smoking "as a convenience" for the impatient majority that sees no tyranny when the immediate finality of legislation is chosen over the uncertain results of education and individual choice over time.

Before the Supreme Court's Kelo decision, which Justice Sandra Day-O'Connor opined allowed government to take virtually any person's home for any public purpose, people didn't really mind if government confiscated a car dealership here and there to build a tax-generating corporate campus. Now, the Pioneer Press maintains, although it is unfortunate, some people must bear the economic burden and suffer a loss of liberty and property rights for the public health of a smoke-free state.

It appears it's not government that governs least that is best; the best government governs "them" more than it governs "us." I don't believe the paper on the east side of the river believes that is the position it is endorsing. Unfortunately, without limits on government's public health authority, that is exactly the position the Pioneer Press is supporting.


*****


Monday, January 10, 2007


Last session the legislature faced the issue of whether the state’s authority to exercise eminent domain had limits. The legislature established in law objective criteria defining when the state’s taking of an individual’s private property would be justified – and when it would not.

A proposed statewide smoking ban confronts this legislature with the same legal conundrum – does the state’s authority to protect public health at the expense of private property rights have limits?

Before considering any statewide smoking ban, this legislature ought first set objective criteria, as was done with eminent domain reform, which define when an individual health issue rises to the level of a public health issue necessitating government intervention. Second, legislators must apply those criteria to secondhand smoke exposure to determine if a statewide smoking ban is a necessary government action.

There are three basic criteria that define when an individual health issue rises to a level necessitating government intervention --

1) A person is exposed to a risk to which he does not consent.
2) Every person or any person might be exposed to the risk.
3) A reasonable person cannot protect himself from the risk.

If a statewide smoking ban fails any one of the criteria, it is likely an unnecessary government intrusion on individual rights. Let’s test them --

There are two elements to the first criterion – the first is level of “risk”; the second is “consent.”

Smoking ban proponents are often guilty of exaggerating statistics and making non-scientific statements about secondhand smoke that are false and misleading. Nonetheless, an objective look at raw data does show that over time there is a greater than 99 percent probability secondhand smoke exposure is correlated with an increase in lung disease and other aliments. However, the same research studies show “exposure over time” is measured in decades and even then, secondhand smoke is at best a weak contributing factor statistically insignificant as a causal factor -- even for lung cancer.

There is virtually no risk from secondhand smoke to a casual, healthy bar patron. To put the risk to bar employees into perspective, a person would have to work in a smoking environment for over 21 years to run an increased risk of lung cancer from about 10 in 100,000 (the nominal rate of lung cancer in non-smokers) to 12.5 in 100,000 (based on a 95 percent confidence interval and a median risk ratio of 1.25).

Does that level of risk after two decades of voluntary exposure justify government intervention?

If legislators can answer “yes,” then the issue of “consent” must be considered – to be a public health issue a person must not consent to the risk. A non-smoker patronizing or working in a smoking establishment ultimately makes the choice to be there; he knows and consents to the risk. Even if one believes that secondhand smoke exposure is a health hazard, a smoking ban fails the first criterion on the basis of consent.

To be a public health issue, everyone or any one is at risk of exposure to dangerous levels of secondhand smoke. A smoking ban also fails this test. Only people that enter or accept employment in smoking establishments face the risk. Given the decades of exposure required for secondhand smoke to constitute a health risk, casual exposure does not create a public health issue.

The final criterion of a public health issue is that a reasonable person can’t protect himself from a risk. This criterion incorporates the principle of implementing “least restrictive means” of achieving the state’s objectives.

If the objective of a statewide smoking ban is preventing exposure to secondhand smoke, the least restrictive means is requiring property owners to post warning signs and inform potential employees that smoking is allowed. More restrictive than simple signage, but less restrictive that a smoking ban, is requiring a state-defined air quality level in bars and restaurants. By definition, a “reasonable person” is capable of making an informed decision about risk if given complete and accurate information.

Legislators had the luxury of being on the popular side when they passed eminent domain reform that protected individual rights. Opposing a statewide smoking ban, action that is unpopular but also protects individual rights, is more difficult. Nonetheless, the previous legislature had the intellectual honesty to set limits on the government’s power to confiscate private property. Regardless of the smoking ban vote outcome, the state does not have unlimited regulatory power when it comes to policing public health. Let us hope a few good legislators seize the day and make that clear.

COLUMN -- Urban grocery gap is a transportation problem

Wednesday, January 3, 2007


So we have another "social justice" problem — the "urban grocery gap." The Pioneer Press reports there are fewer major grocery stores in Minneapolis and St. Paul than in the suburbs. Consequently, urban shoppers pay premium prices for groceries at smaller markets and convenience stores, which generally don't have the variety of healthy foods available at the larger chain grocery stores.

"It makes no sense that people in cities, who are more mass-transit bound, with less income, are subject to the highest grocery prices," the Pioneer Press quotes Minneapolis Mayor R.T. Rybak. Pardon me, Mr. Mayor, but it makes perfect sense.

Pioneer Press columnist Joe Soucheray jumped on the obvious angle of this story: The elitist NPR book-bag totin' crowd are raging about the unfairness of the very culture they work so hard to create — a European village of small shops connected by mass transit. He's spot on. However, that doesn't mean the grocery gap isn't a problem. It is, but it's not a social justice problem; it's a transportation problem.

The Pioneer Press reported there are a total of 10 top-five food-chain stores in Minneapolis and St. Paul, compared with 123 in the suburbs. True as far as it goes, but a quick distance search on Switchboard.com reveals there are 13 Cub Food stores within 10 miles, measured from downtown St. Paul, and 20 within 10 miles of Minneapolis. That compares to three within 10 miles of my house in Afton – the closest being 6.5 miles away.

The point is there is no shortage of chain stores within reasonable driving distance of urban areas. Rybak acknowledges that people living downtown drive out to the suburbs for groceries. In all likelihood, they drive no farther than I drive to shop. But here's the rub — 44 percent of urban citizens don't own automobiles and require public transportation to and from grocery stores. Rybak's description of these people as "mass-transit bound" just might be the most truthful comment about mass transit ever made by any public official.

The Pioneer Press describes the "ordeal" of mass-transit bound St. Paul resident Leon Davis — a two-hour, two-bus trip to purchase milk and whatever else he can carry, including having to grab a coat (gasp) and "trudge" to the bus stop. Hyperbole (and cynicism) aside, Davis is a great example of what self-interested new urbanists don't think about when inflicting subsidized public transportation solutions on the rest of us.

Public transportation is not just about moving people from point A to point B. It's about transportation that actually serves a purpose. People have a reason for wanting to get to point B, in this case grocery shopping. And whether public transportation gets them there in two hours or 10 minutes, they have the same problems.

• They have to get to a transit stop and wait regardless of the weather.
• They have to adhere to public transportation schedules and routes.
• They are limited in amount and kinds of groceries by how far they have to carry them.
• What do you do with an armload of groceries on a crowded bus or train? (Hint: Don't run out of milk on a Sunday after the Vikings play).

Hybrid buses and shiny trains aren't going to solve those problems. Buses and trains are networked transportation with virtually no flexibility. Yet we continue to spend millions of dollars on mass transit that ultimately subsidizes the convenience of Vikings season-ticket holders from Bloomington more than it makes grocery shopping less expensive and more convenient for a Leon Davis.

Despite Rybak's credulity, existence of a "grocery gap" makes perfect sense, and it is largely the result of utopian policies that ignore everyday realities like grocery shopping via a bus or train. The solution to the grocery gap is not Rybak meeting with executives from Lunds, Whole Foods and Kowalski's markets — not the places to stretch your food budget, unless you're shopping for "Lobster Helper."

The solution is providing convenient transportation from urban areas to existing grocery stores. (How about a jitney service from urban neighborhoods to suburban markets?)

People are "mass-transit bound" only because politicians are bound to their narrow view of mass transit. It's about time we put policy emphasis where it belongs — on people's problems, not the Twin Cities' image. My guess is when a train is finally cruising along University Avenue, Leon Davis will still be grabbing a coat and trudging to the bus stop in quest of a carton of milk. But the train will be really cool.

email this
print this